Ultra Sues Michelle Phan for Using Their Music In YouTube Videos…

Ultra Records and Ultra International Music Publishing are suing Michelle Phan for copyright infringement.

Michelle is one of YouTube’s most popular creators, and her channel has over 6.5 million subscribers. She worked her way up to these numbers by posting quality makeup tutorial videos. She’s basically become a household name for the makeup-using YouTubers of my generation (FYI, I’m 25).

Ultra says that Michelle illegally used their music in her makeup tutorials, and that the infringing videos were viewed over 150 million times. They also say they informed Michelle that she didn’t have a license to use the music, but she still continues to infringe.

The complaint specifically names Kaskade as one of the artists whose music was most-used by Michelle. This is pretty ironic, considering Kaskade wrote this statement on his blog last month:

“There’s always been this cagey group of old men who are scared to death of people taking their money. Back in the day, they were upset that the technology existed to record onto cassette tapes directly from the radio. “What! (Harumph!) Why will people buy music if they can just pull it out of the air?!” Yet, people still bought music. Because it was more accessible. Because more people were exposed. Because Mikey played it for Joey on the corner and then Joey had to have it. It’s music, and we buy what we love. We can’t love music we haven’t heard.

Innovation helps the music industry. The industry only needs to make the effort to keep up and adapt. Make no mistake: exposing as many people as possible to music – all music – is a good thing. Everyone wins. The artist, the audience, even the old guys who just want some more cash.”

Ultra is seeking $150,000 for each song used, or unspecified damages.

If Ultra wins this case, it’ll mean that tens of millions of people who were exposed to their artists’ music will no longer be.

Michelle Phan has tremendous influence, and it would make much more sense for Ultra to try and form a partnership with her.

No doubt Ultra crunched the numbers on this before filing the lawsuit. A super popular creator like Michelle Phan is likely making tons of money on direct deals with advertisers. More money going all the way than just making claims.

Indeed, as I point out that the YT Vlogger is making millions of dollars and using other artists music without compensation.

If a starving artist found out that their music was being used for a millionaires Vloggers videos, then I don’t see anything different between a claims lawsuit of a starving artist versus a major label.

Having some experience in family law, I’ve noticed that females tend to be given a free pass from any wrongdoing. Is this what is going on today with regards to her case?

One might wonder if the accused was a male, how much praises he will be given for using other peoples music to make money

Why is he scum? Why not actually make an intelligent rebuttal instead of an ad hominem attack on him for making a valid point? Is it because you’re a female, and you feel like because he mentioned that a female might have gotten special treatment, you took offense?

Grow up. Since when is it sexist to point out that somebody ELSE might be making judgments based on gender, huh? He’s not making ANY judgments on you, or females, so calm down please.

First of all, this suing is all childish games and acts. There is no point of suing her. Youtube has many accounts using different music. Everyone claims that it isn’t there music to begin with. What’s wrong using music for your intro? Or even during? Yeah her videos have tons of viewers each and everyday and she makes money off of it. But not because of the music, because of her talented skills and her beauty to appear on screen and inspire those who love the art of makeup. Music is just another ideal, a pause to create an emotion to get along with the video. So suing her for copy rights is wrong. Then why not go ahead and sue every youtube account that uses their music. I’m sure some of them did not buy it from itunes or amazon, did they? Like I said, if they are so jealous about the music that’s in her makeup tutorials just because of the money, they maybe they should start advertising and do something to attract young users, or even more make a youtube channel. All of this suing is childish and rubbish. They will automatically lose this case.

Let’s talk about the real story here: Content ID does not work anymore! .

And that changes the entire music industry.

While Google made the world believe that all infringing UGC was monetized or removed, it allowed selected channels to bypass Content ID — and now YouTube even seems to ignore legitimate takedown notices when these channels use illegal content.

BTW, the maximum stat damages for willful infringement would be $150K per infringement. The infringement would be the unauthorized broadcast of the music synchronized with the image, not the placement of the music, therefore if willful infringement could be proved and the maximum stat damages are granted with no settlement, it would be:

If the music doesn’t contribute to the value of the videos, why is she using it? She could leave them silent. Or, heaven forbid, try and make her own music. After all, we are constantly told how nowadays anyone can make professional quality music for nothing on their laptop. You can’t have it both ways: either she thinks the music is valuable, in which case she should pay for it, or she doesn’t, in which case she shouldn’t be using it.

Thanks for the nice comment.
I don’t know that specific case, reading other comments it seems like she’s going through a MCN that would prevent monetization from an external source.
If this is the case then Ultra might be “right”, however suing a successful YouTuber may not be the smartest move…
They could have contacted the MCN and expressed their concerns, the video would have been released by the MCN then it’d have allowed them to monetize via ContentID.
Maybe they did, and maybe their messages/letters or whatever were simply ignored (knowing how MCNs behave I wouldn’t be surprised), then yes the only solution to resolve this is to sue them.

Are there more details available? How come this wasn’t picked up by ContentID and flagged for UGC revenue for the content owner? Or set to takedown if their policy was set for blocking… That’s YouTube 101 stuff right there..

This story strikes me as odd for a couple of reasons. Before I get to those, to be fair to Kascade, I’m pretty sure he’s been critical of Ultra for not allowing his music to be freely used and shared. I’d be surprised if he was against Michelle or anyone else using his music for free. If he’s condoning the lawsuit, then, I agree, he’s being hypocritical and disingenuous in his position stated on his blog.

Now to the odd things–at least to me:

1. Prior to a suit, if Ultra was ignored by Michelle or her reps in their licensing request, why didn’t they just issue take down notices for the infringing videos? That certainly would have gotten Michelle’s and her MCN’s attention.

2. Being a big YouTube celebrity (who has a TV commercial) and member of a prominent MCN, I’d be shocked if Michelle or the MCN didn’t have attorneys who would have advised her of the potential infringement. I’m sure she also has a manager and the MCN has several employees who clear music for their videos. If none of these people anticipated a potential copyright infringement, they need to be replaced or augmented with professionals who understand music copyright.

I’d love to hear the entire story because this just doesn’t make sense.

Her channel is likely a ‘managed’ channel and not an ‘affiliate’ channel. Managed channels bypass CID as YouTube gives managed channels the benefit of the doubt that the uploader has licensed or been given permission to use the material in their videos.

The ‘affiliate’ MCN channels have CID placing claims on their videos. Only ‘managed’ channels are exempt from this. Phan and her MCN have an agreement with YouTube that states they will not post any videos that contain unlicensed material. It could get messy for her with YouTube in addition to Ultra.

The answer to this question could be really, really simple. If Ultra also served Youtube/Google in their complaint, and it was received properly, then Google knew of the infringement and would be required by law to remove it under DMCA guidelines.

Nina, I don’t think it’s quite fair to say that Ultra would be better off forming a partnership with Michelle Phan when she, or her people, didn’t see any value in doing so before they chose to infringe. They put the label/publisher in the position of either suing, or consenting to some kind of deal, when they were never given the choice to not participate at all. Reminds me of the Goldiblox/Beastie Boys thing a few months ago. In my opinion, way too much of that narrative was about what a good message the company was promoting with the use of the song, rather than being about whether the songwriters were actually entitled to any say in how their music is used.

Ultra is in the right. Of course, they could have first contacted Phan for a settlement and agreement before suing. However, it sounds like they did contact Phan and received no response, so that was a dead end. Regardless, the lawsuit and obtaining compensation for damages is fully justified.

Right, as I mentioned earlier, if YouTube was served by Ultra’s attorneys, then of course they knew. And, would be required under DMCA law to remove the content.

As to Nina’s earlier point regarding the upsides of exposure, I think that principle holds for music that is lesser known. Better known, more famous content from well-known artists should be treated differently — people are already familiar and don’t need to be ‘exposed’ again. At that stage, the value equation changes — and the rights owner is justified and using good business sense to charge.

1) Google and Phan did not ask for permission.
2) Google and Phan did not remove the illegal content when asked to by representatives for the artists.

That’s illegal.

If you were a reporter, you would want to know:

a) How often does this happen?
b) How many white-listed channels bypass Content ID?
c) How many of these white-listed channels use illegal content commercially?
d) Are these channels systematically ignoring takedown notices?
e) How long has this been going on?
f) What did Google know?
g) When did Google know?
h) How could YouTube avoid getting caught?
i) What will happen now?

I have a slightly less sinister hypothesis about Phan (or her people’s) motives. I think there is a rather widespread assumption that almost any use of music on YouTube counts as ‘fair use’ under US copyright law. Indeed, they could find some support from Larry Lessig, who apparently thinks that the use of music as backing for a dance performance is ‘self-evidently fair use’ – at least if the dancer is a toddler. Or GoldieBlox, who used a wide range of music as background to their video ads, without the excuse of ‘parody’ which they dreamed up to defend the Beastie Boys case. Ms Phan made no attempt to hide the use of Kascade’s music – indeed, in the example I looked at Kascade are actually listed in the video credits, with a link to iTunes! So I think the likelihood is that it just didn’t occur to Phan or her team that they were doing anything wrong. After all, who could possibly object when they are getting ‘exposure’? The possibility that people might object to having their music associated with Ms Phan’s ghastly videos assuredly will not have crossed their minds.

Perhaps you are right and this speaks to the freewheeling nature of so much of what is on YouTube (and a big reason content id was created), but a major YouTube star who is pulling in perhaps millions of dollars a year doesn’t have the luxury it saying “I didn’t know”.

1) Is Content ID already dead for all practical purposes?
2) Has Google tricked the entire industry into believing that content is either monetized or removed via Content ID, while it in fact turned YouTube into the piracy site it was prior to the Viacom case?
3) When did Google know what about Phan’s infringement? This is crucial. If Google was aware of the infringement but failed to act on it, it could kill YouTube.

I think its BS that they are saying she’s profiting off their music like people actually go to her channel to hear music playing low in the background. I know a few tubers who don’t have a license for the music they play in their videos but I guess cause they aren’t rich it doesn’t matter.

Well, if Ms Phan didn’t think the music was enhancing her videos, and thus increasing their commercial value, she wouldn’t have used it, would she? Do you suppose she was using the music as an act of charity?

Your fellow tubers probably already have their videos monetized by the rightsholder for that music…especially if it’s own by a major label. Songs are “fingerprinted” and a computer scans for that song and puts a claim on it. If your friends don’t have that song monetized its either because A: that song is not in the system, or B: the song has not been found yet. It doesn’t matter if people are listening to the song or not. Imagine you are in a band and you hear your song in a video. You can legally get a piece of that videos revenue IF you have a claim on it. Without the claim, you can’t get any piece of the action.

The only thing that shocks me about this story is the fact that she has mad $5M off these makeup videos. I had no idea that kind of money was possible from an indie and not a big company. Is all this coming to an end once You Tube makes those big changes in the future? And by the way, has any viewer ever commented to her, “I just come here for the music”?

all i wanna said is that if you are a music maker and you do not want your music to go on to another person. DO NOT sell ur music to anyone. What wrong with people use your music? What if your music is nameless and that one person use your music for their video and her fans like it and ask for music name. Is that wrong too? or you will be happy because she help get other people to know your music?

There are ton of people using music from other music maker in youtube, if you do not like the way people use your music. Just dont never put your music into the world. When read this whole story on the sue, i just got feeling that those music maker are poor of money maker and want other money. Why not ask her to stop it when she starting youtube and why right now? because she making $$ and you guy got jealousy?

I disagree. Musicians have their legal right to claim for royalties for alleged Intellectual property infringement. Why should musicians spend tens of thousands of dollars to produce an album, only for it to end up making someone else coin without an agreement?

The other issue is whether the outcry against Ultra would be different,say if the accused was male YT Vlogger.

There’s a difference between what should be a sync and sharing/streaming/whatever. You want to play my bands’ music, cool, the more ears the better. You specifically want to sync my bands’ music to improve your video/whatever, you’re going to have to pay, unless you asked first and we decided it was worth it.

There’s always been that difference, so not sure why it’s being ignored to try and prove a point.

According to a BBC report, Phan’s company are now claiming that they had permission from Ultra to use the music. If they have it in writing, that settles the matter. If they don’t, more fool them: it is essential to get this kind of thing recorded in writing.

Like, ultra will be that stupid to spend thousands of dollars in attorney fees to break a licensing contract. Even so, some speculate that the ContentID system was bypassed, so the appropriate royalties were not paid.

In profeminist countries like USA, Canada and Sweden, the legal system might give the accused a free pass. The majority of men who endorse the actions of the accused are thinking with the wrong head so to speak.

1) Accused gets let off with a minimal fine and/or a warning
2) Her supporters might file a petition to exclude her from the law, leading to point 1.

That’s the probable outcome.

The impartial outcome would be;

The accused will have to cover court costs, outstanding royalties & licensing fees, fines and desist from using other peoples music in her videos. Possible lawsuit against YT and Google for failing to abide by California intellectual property laws.

“The accused will have to cover court costs, outstanding royalties & licensing fees, fines and desist from using other peoples music in her videos. Possible lawsuit against YT and Google for failing to abide by California intellectual property laws.”

I think a variation of this scenario is the most likely outcome.

But let’s see. Either she has a written permission from Ultra to use the songs commercially — or she doesn’t.

Michelle is helping these artists. She always mentions the names of the songs and the artists in every video she makes so its not like she purposely trying to steal their songs! I hope that ultra loses millions of people who listen to their artists music be michelle is helping them!